This Employment Agreement Amendment involves
Title: AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: California Date: 3/5/2009
Industry: Casinos and Gaming Sector: Services
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment to the Amended and Restated Employment Agreement (this “Amendment”) is effective as of the 31 st day of December, 2008 (the “Effective Date”) by and between Live Nation Worldwide, Inc., a Delaware corporation (the “Company”), and Michael Rapino (the “Executive”).
WHEREAS, the parties entered into that certain Amended and Restated Employment Agreement dated effective January 1, 2007 (the “Original Agreement”).
WHEREAS, the parties desire to amend the Original Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements included in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. The last two sentences of Subsection 8(a)(i) of the Original Agreement are hereby amended and restated in their entirety to read as follows:
“The Base Salary and vacation components of Final Compensation shall be paid in a lump sum on or about the Date of Termination, within the time period as required under the laws of the State of California. The Performance Bonus component of Final Compensation shall be calculated by multiplying the amount of the Performance Bonus (if any) the Executive would have earned had he remained employed for the full year in which the date of Termination occurs by a fraction, the numerator of which is the number of days during such year that the Executive was employed and the denominator of which is 365, and, subject to Section 8(e), including without limitation, Section 8(e)(ii), shall be paid as soon as practicable in the year following the taxable year that includes the Date of Termination.
2. Subsection 8(a)(ii) of the Original Agreement is hereby amended by inserting the following sentence at the end of the Subsection:
“Subject to Section 8(e), including without limitation, Section 8(e)(ii), such payment shall be made as soon as practicable following the Date of Termination, but in no event later than the later of the end the taxable year that includes the Date of Termination and the 15 th day of the third month following the Date of Termination.”
3. Subsection 8(a)(iii) of the Original Agreement is hereby amended and restated in their entirety to read as follows:
“(iii) provided the Executive signs and returns a timely and effective Executive Release of Claims, the Company shall maintain in full force and effect, for the continued benefit of the Executive and his eligible dependents, for a period of three years (the “Coverage Period”) following the Date of Termination the medical and hospitalization insurance programs in which the Executive and his dependents were participating immediately prior to the Date of Termination, at the level in effect and upon substantially the same terms and conditions (including, without limitation, contributions required by the Executive for such benefit) as existed immediately prior to the Date of Termination; provided that if the Executive or his dependents cannot continue to participate in the Company’s plans and programs providing these benefits, the Company shall reimburse the Executive for the cost actually incurred by the Executive of acquiring equivalent medical and hospitalization coverage outside of the Company’s plans and programs, but only to the extent that such costs are substantiated by the Executive and verified by the Company (the “Continued Benefits”); provided that such Continued Benefits shall terminate on the date or dates the Executive receives equivalent coverage and benefits, without waiting period or pre-existing condition limitations, under the plans or programs of a subsequent employer. Subject to Section 8(e), including without limitation, Section 8(e)(ii), any reimbursement payments made to the Executive to cover the cost of equivalent medical and hospitalization coverage outside of the Company’s plans and programs in accordance with the preceding sentence shall be made no later than the last day of the calendar year following the calendar year in which such cost was incurred. Notwithstanding anything to the contrary in this Section 8(a)(iii), the annual value (as the same would be determined under Section 280G of the Code) of the Continued Benefits shall in no event exceed $16,666.67 per year (the “Annual Cap”); accordingly, the Company’s obligation to provide the Continued Benefits for any given year of the Coverage Period shall cease once the value of the Continued Benefits that have been provided to the Executive and/or his dependents for such year reaches the Annual Cap, after which time the Executive shall be responsible for the full cost of the Continued Benefits for the remainder of such year.
4. Section 8(e) of the Original Agreement is hereby amended and restated in its entirety to read as follows.
“(e) Code Section 409A Compliance .
(i) To the fullest extent applicable, amounts and other benefits payable under this Agreement are intended to be exempt from the definition of “nonqualified deferred compensation” under section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) in accordance with one or more of the exemptions available under the final Treasury regulations promulgated under Section 409A and, to the extent that any such amount or benefit is or becomes subject to Section 409A due to a failure to qualify for an exemption from the definition of nonqualified deferred compensation in accordance with such final Treasury regulations, this Agreement is intended to
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